Choosing the right offence (2) – getting it right when prosecuting historical sexual allegations

As noted in the last blog posting, new allegations of old sexual misconduct continue to be made and the newest area is football. At the time of writing there are 350 potential victims, 98 clubs involved and 21 police forces investigating[1] with at least two defendants so far charged[2] and another 83 suspects.[3]

Some of the allegations will relate to recent conduct, but it is clear that many of the allegations are of misconduct years ago which will not be covered by the Sexual Offences Act 2003 (SOA 2003) but by the patchwork of laws which existed before the 2003 legislation. Trials of old offences can be difficult, not just because a lot of evidence will no longer be available (for example, team lists and training timetables which could show where people were at least expected to be and when), but also because it means applying the laws which were then in force. These old laws have a continuing life, despite their repeal by the SOA 2003, because of continuing prosecutions for past misconduct – this was the reason we initially embarked on writing the Sexual Offences Handbook: to have old and new law all in one place.

An issue thrown up by the continuing prosecution of old offences is what to do when it becomes apparent that an aspect of the old law is wrong: it is no longer in force, but it continues to have effect. Consider the following situation: the complainant was told by the defendant to masturbate him. This occurred in 1995 when the complainant was 14 and the defendant was his adult football coach, and the complainant did as he was told by an adult with power over him. Now in, 2016, the complainant finally gets up the courage to go to the police. No-one commanding a child in such a situation, whether in 1995 or in 2016, could think that what they were doing was legal, but following the decision in Fairclough v Whipp[4] in 1951, the conventional view has been that such an incident did not amount to an indecent assault. The offence of indecency with a child was created in 1960 to fill the perceived gap, but it only covered children aged under 14 until 2001. The conduct in the example would not be covered by either offence and so the defendant would be charged with nothing. (If the defendant did this now he would be caught by s.10 of the SOA 2003.)

The Court of Appeal in Dunn[5] in 2015 had the opportunity to look again this point, but refused to reconsider the “settled law” of Fairclough. The Court of Appeal was, however, wrong not to look again at Fairclough. As the Supreme Court accepted this year in in Jogee[6], however well settled the law – and the doctrine of parasitic accessorial liability in secondary liability was well settled – if the courts have been in error, “it is for the courts to correct the error”.[7]

When the intertwined laws of common and indecent assault are examined, it is clear that there was insufficient justification, in precedent and in principle for the decision in Fairclough and the three other 1950s cases which cemented this principle.[8] The decisions are flawed in four respects: they misunderstood the nature of assault and battery, they required hostility in the defendant’s actions, they misunderstood the role of unlawfulness and they required that the conduct be against the victim’s will.

As to the first point, a defendant may be guilty of battery by indirectly bringing about contact between a victim and something else, including the defendant as demonstrated in the more recent cases of Santa-Bermudez and DPP v K as well as some older authorities. Logically, the defendant could also be guilty of an assault by causing in the victim that the apprehension that the contact is going to take place in the immediate future.

As to hostility, there is little support for this requirement in common assault and none in indecent assault following the decision in Faulkner v Talbot[9] which firmly declared there was no role for hostility in indecent assault.

The requirement of unlawfulness misunderstood what is now better understood as the requirement that the defendant’s conduct was outside the general exception for physical contact which is within generally acceptable standards.[10] What the defendant is doing in commanding the victim is clearly not, without more, within generally acceptable standards.

Finally, there was never any excuse for requiring that the conduct was either without the victim’s consent or against the victim’s will as a child under the age of 16 could, by statute, not give legally-recognised consent to indecent touching.[11]

The rule in Fairclough is simply demonstrably wrong – wrong at the time and even more clearly wrong now – and to retain it is indefensible.

This matters because there will continue to be victims like the one in example, who will feel utterly let down by a system which refuses to correct a mistake in some decisions in case from over half a century ago.

It might be argued that there are few incidents which would not be covered by the indecency with a child offence. However, even if that offence applies, it will in many cases lead to a lower sentence for the defendant due to the different maximum sentence. Further, where there are multiple counts on an indictment covering different ways in which the defendant had indecent contact with the victim(s), having to charge indecency with a child complicates matters for a jury when everything might otherwise be dealt simply with as indecent assaults which would enable a focus on the important issue which is whether or not the conduct happened. Finally, labels matter, and children like the child in the example have been indecently assaulted and the conduct should be given that label.

There might be issues raised about whether it is right to make such a retroactive change in the law which can only affect conduct in the past, but that is to look at the issue from the wrong perspective. It is submitted the question should really be, is right to leave law which is so clearly wrong unchanged? The coach defendant in the example would not have believed that his conduct was legally justified. Despite the pronouncements of the appellate courts on this point, there are examples at first instance where conduct amounting to the example situation has been charged as indecent assault – it is the appellate courts which need to catch up. This would not be the first time that such a retroactive change was made – the marital rape exemption was famously removed in R v R[12]in 1991 and the challenge to this change in the European Court of Human Rights failed. Justice is necessary for both defendants and complainants – the state bears a responsibility to effectively prosecute and penalise sexual misconduct against vulnerable individuals, particularly children.

A fair trial on the right law is surely what any criminal justice system should aspire to provide.

A longer version of this article developing both the four points on indecent assault and the retroactivity argument can be found in a forthcoming issue of the Journal of Criminal Law under the title “The need to kill off zombie law: indecent assault, where it went wrong and how to put it right”.